PW317/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

Dariusz Hanuszewicz    –    appellant                                                                   PW317/2013

v

Strand Security Limited (In Liquidation)    –    respondent

against the recommendation of the Rights Commissioner in the case of:

Dariusz Hanuszewicz

V

Strand Security Limited

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr T. Ryan

Members:        Mr J. Horan

Mr S. Mackell

heard this appeal at Dublin on 7th March 2014

Representation:

_______________

Appellant(s) :              Mr Richard Grogan

Richard Grogan & Associates,

Solicitors, 16 & 17 College Green, Dublin 2

Respondent(s):            No appearance by Liquidator

This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Payment of Wages Act, 1991, (ref: r-127584-pw-12).

The decision of the Tribunal was as follows:-

There was no appearance by or representation on behalf of the Liquidator. The Tribunal is satisfied that the Liquidator was on notice of the hearing.

The appellant was suspended without pay, on the 10^th April 2012. No disciplinary meeting was convened to investigate the alleged wrongdoing. The suspension continued until the company ceased to trade on 21^st October 2012. The last Managing Director of the company attended the hearing and confirmed that the contract of employment was silent on the subject of whether suspension was to be paid or unpaid.

Determination:

In reaching its decision the Tribunal considered the distinction between suspension without pay, which is in the nature of a disciplinary sanction following a disciplinary meeting, and suspension on full pay pending a disciplinary hearing for the purposes of conducting an investigation into allegations made against a particular employee.

In the case before the Tribunal the claimant was suspended without pay pending an investigation. There is no contractual provision in the claimant’s contract permitting suspension without pay.

The Irish Courts have made it clear that suspension of an employee may only be for a finite time and indefinite suspension will not be tolerated. The claimant was suspended for in excess of six months (10^th April 2012 to 21^st October 2012). This is in no way a finite period and is a clear breach of the fair procedures and the claimant’s entitlement to natural justice.

In Deegan v Minister for Finance [2000] E.L.R. 190, civil servants in the Department of Finance claimed that the decision to suspend them following the detection of financial irregularities was in breach of fair procedures and of their rights. The Supreme Court held that where suspension constitutes a disciplinary sanction, the principles of natural justice should be considered, before a decision is made to suspend an employee. However, when an employee is suspended pending an enquiry into whether disciplinary action should be taken, the principles of natural justice may not apply.

Having heard the evidence the Tribunal overturns the decision of the Rights Commissioner, ref: r-127584-pw-12, under the Payment of Wages Act, 1991, and awards the appellant €8,575.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)